MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            8 August 2000                  
	DOCKET NUMBER:   AR1999028903

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Ms. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelley  		Chairperson	
	Mr. James E. Anderholm  		Member	
	Mr. Robert E. Blakely  		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, physical disability retirement or separation.

APPLICANT STATES:  Subsequent to his discharge from the military the Department of Veterans Affairs (VA)  granted him a 40 percent disability for service connected medical conditions.  In support of his request he submitted a copy of his VA decision. 

COUNSEL CONTENDS:  Counsel offers nothing more than what was provided by the applicant.  

EVIDENCE OF RECORD:  The applicant's military records show:

On 31 August 1989, he enlisted in the Regular Army for a period of 3 years.  

On 4 January 1991, he was convicted by a general court-martial of negligent homicide of another soldier by operating his vehicle above the posted speed limits thereby striking a tree causing the soldier’s death.  His sentence was reduction to pay grade E-1, confinement and a forfeiture.  

On 16 June 1992, he accepted nonjudicial punishment, under the provisions of Article 15, Uniformed Code of Military Justice, for altering a public record,             DD Form 689, Individual Sick Slip.  His punishment was reduction to pay grade E-3, extra duty, and a forfeiture. 

On 20 July 1992, his company commander recommended that he be separated under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  His recommendation was based on the applicant’s poor duty performance, his altering a sick slip to give himself quarters and his court-martial conviction.  He also stated that the applicant was a disruptive influence on the unit and clearly demonstrated a lack of potential for continued honorable service. 

On 21 July 1992, the appropriate separation authority approved the applicant’s separation with an under honorable conditions discharge.

On 1 September 1992, the applicant was separated under the above cited regulation for unsatisfactory performance with an under honorable conditions discharge.  His Report of Separation indicates he had 2 years, 10 months and  25 days of creditable service.

Subsequent to his separation, the applicant was granted a combined service connected disability rating of 40 percent by the VA for irritable bowel syndrome and migraine headaches.

On 7 January 1997, the Army Discharge Review Board (ADRB) denied the applicant’s request for a change in the character and reason of his discharge.

On 9 December 1999, a medical staff advisory opinion (COPY ATTACHED) noted that during the 1990-1992 timeframe, there were several, but not very many, complaints of abdominal pains, vomiting and headaches.  These complaints were grouped, singular or in combination.  The diagnoses given were Gastroenteritis, Sinusitis, Vascular Headache, and Migraine Headache.  According to the applicant’s medical record, all complaints were evaluated and treated appropriately and responded well to treatment.  There were no indications or requests by treating physicians for a Medical Evaluation Board (MEB) examination.  The applicant’s disabilities did not terminate his career, and there was no medical reason at the time to affect his discharge status.   

The advisory opinion was provided to the applicant for comment/rebuttal; however, no response was received.  

Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical
condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.  Furthermore, unlike the Army the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  

2.  The applicant has failed to submit evidence that an error or injustice occurred in this case.  

3.  The evidence of record indicates he did not have any medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

4.  A rating action by the VA does not necessarily demonstrate any error or injustice by the Army.  The VA, operating under its own policies and regulations, assigns disability ratings as it deems appropriate.  Any rating action by the VA does not compel the Army to modify its reason or authority for separation.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___sk___  ___jea__  ___reb___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR1999028903	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000808	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  108.00		
2.		
3.		
4.		
5.		
6.